December 31, 2008
Acupuncture Healthcare Plaza, P.C. v Zurich Ins. Co. (2008 NY Slip Op 52585(U))
https://www.beynensonlaw.com/case-law/acupuncture-healthcare-plaza-p-c-v-zurich-ins-co-2008-ny-slip-op52585u/
- Decided
- December 31, 2008
- Citation
- 2008 NY Slip Op 52585(U) · 22 Misc 3d 126(A)
- Posture
- Default or vacatur
- Outcome
- Insurer prevailed
- Issues
- Defaults and vacatur
- Legal questions
- Vacating a default: excuse and defense (see the maps)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Acupuncture Healthcare Plaza, P.C. v Zurich Ins. Co. (2008 NY Slip Op 52585(U))
| Acupuncture Healthcare Plaza, P.C. v Zurich Ins. Co. |
| 2008 NY Slip Op 52585(U) [22 Misc 3d 126(A)] |
| Decided on December 31, 2008 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through February 24, 2009; it will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2007-1413 K C.
against
Zurich Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered July 12, 2007. The order, insofar as appealed from, granted plaintiff’s motion to vacate an order granting, on plaintiff ‘s default, a motion by defendant for summary judgment, and, upon such vacatur, denied defendant’s motion for summary judgment.
Order, insofar as appealed from, reversed without costs and so much of plaintiff’s motion as sought to vacate the order granting defendant’s motion for summary judgment and, upon such vacatur, to deny defendant’s motion for summary judgment denied.
In this action by a provider to recover assigned first-party no-fault benefits, the court below granted defendant’s motion for summary judgment on default. Thereafter, plaintiff moved, inter alia, to vacate the order entered upon its default and, upon such vacatur, to deny defendant’s motion for summary judgment. Plaintiff’s counsel alleged in the moving papers that the default was due to law office failure. By order entered July 7, 2007, the Civil Court, insofar as relevant to this appeal, granted plaintiff’s motion to vacate the order entered upon its default and, upon such vacatur, denied defendant’s motion for summary judgment.
To be relieved of its default, plaintiff was required to demonstrate both a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). The conclusory, undetailed and uncorroborated claim of law office failure did not amount to a reasonable excuse (see Nurse v Figeroux & Assoc., 47 AD3d 778 [2008]). Plaintiff’s counsel offered no explanation in the motion papers as to why he failed to submit written opposition to the motion or appear on the adjourned date of the motion. Accordingly, the order, insofar as appealed from, is reversed and so much of plaintiff’s motion as sought to vacate the order entered upon its default and, upon [*2]such vacatur, to deny defendant’s motion for summary judgment is denied.
In view of the foregoing, we pass upon no other issue.
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: December 31, 2008
Legal questions
A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Did the defaulting party show a reasonable excuse (or lack of notice) and a potentially meritorious defense or claim?
This decision: Relief denied because no reasonable excuse (or, under CPLR 317, no lack of actual notice) was shown; meritorious defense accepted or not reached
Reversed vacatur of the order granting summary judgment on the provider's default because counsel's conclusory, undetailed, uncorroborated law office failure claim was no reasonable excuse for not opposing or appearing.
Of the 170 decisions on this question in the Second Department courts and the Court of Appeals, 64 (this one included) are in the same category.
Similar decisions
- Acupuncture Works, P.C. v Interboro Ins. Co. (2011 NY Slip Op 52374(U))An order granting a motion without written opposition is entered on default and is not appealable, even if the motion was orally argued.
- Super Acupuncture & Herbology, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 50178(U))The insurer's vacatur motion failed because it omitted the briefing stipulation and lacked evidentiary support for law office failure.
- N.S. Acupuncture Servs., P.C. v Allstate Ins. Co. (2014 NY Slip Op 51258(U))The provider's appeal from the grant of the insurer's unopposed vacatur cross motion was dismissed because no appeal lies from a party's default.
- A.B. Med., PLLC v Cna Ins. Co. (2015 NY Slip Op 50199(U))The provider failed to show a reasonable excuse for submitting late opposition after stipulating to a summary judgment briefing schedule.
- Friendly Physician, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51772(U))The insurer established an excusable law office default and a meritorious medical necessity defense warranting vacatur.